United States v. Arturo Lopez-Vasquez

1 F.3d 751, 1993 WL 232082

Opinions

ORDER

The opinion in United States v. Lopez-Vasquez, No. 92-50271, slip op. 1043 (9th Cir. Feb. 8, 1993) is amended as follows:

[Editor’s Note: Amendments have been incorporated into published opinion.]

With these amendments the panel has voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc.

The full court was advised of the suggestion for en banc. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en bane consideration. Fed.R.App.P. 35.

The petition for rehearing is denied and the suggestion for rehearing en banc is rejected.

OPINION

PER CURIAM:

I.

Arturo Lopez-Vasquez was deported May 3, 1991. On August 28, 1991, he attempted to enter the United States from Mexico through a border patrol checkpoint. He told border patrol agents he was a United States citizen but had no identification because his wallet had been stolen. Lopez-Vasquez consented to a search of his bag and agents found a card with the name “Arturo Vasquez.” A computer search under that name revealed an extensive criminal history and prior deportations, including the deportation of May 3. Lopez-Vasquez was arrested and indicted for reentry after deportation in violation of 8 U.S.C. § 1326. In a pretrial motion, Lopez-Vasquez contended his May 3 deportation could not serve as the basis for a conviction under § 1326 because his waiver of his right to appeal the deportation order was not knowing and intelligent. The court denied the motion. Lopez-Vasquez entered a- conditional plea of guilty, preserving his right to appeal the denial of his motion.

II.

A claim that a defect in a prior deportation order precludes reliance on the deportation in a prosecution for violation of 8 U.S.C. § 1326 presents “mixed questions of law and fact requiring us to exercise judgment about legal principles. Accordingly, we review [Lopez-Vasquez’s] claims de novo.” United States v. Proa-Tovar, 975 F.2d 592, 594 (9th Cir.1992) (en banc).

A.

Lopez-Vasquez was deported from the United States on May 3, 1991 after a group hearing with at least eleven other aliens. Although the immigration judge spoke to Lopez-Vasquez through an interpreter, he did not ask him, or any other member of the group, personally whether he wished to appeal his deportation.¹ Instead, he addressed them as a group:

THE COURT: Please answer together gentlemen, do you all understand the decision in your case?

ANSWER: Yeah!

THE COURT: [If] you accept the decision now, it is final and you will be deported to Mexico tonight. But you do not have to accept deportation. If you think it is wrong or unjust in your case for any reason, you can appeal the case to the higher court. Appeal is the legal way of saying to send the ease to the higher court for study and review. Now all of you should have in your possession the Spanish language form I-648A. Regardless of the [inaudible] If you do not have a form please stand now. Let the record show that no one is standing.

Gentlemen, this appeal [form] explains about appeal like I am doing. And [inaudible] to make an appeal that cost money, but forget about that if you have no money; you can file the appeal free of charge. I [will] give you help with the paper work. Even if you do not know at this time if you want to appeal, the law says that you can reserve your right to appeal for the next 10 days and think about it.

Gentlemen, if any of you do not understand about appeal, or if you have any questions about appeal, please stand now so that I can talk to you. Let the record show that no one is standing. If any of you want to appeal your case to the higher court, or if you want to reserve your right to appeal for 10 days and think about it, please stand so that I can talk to you about that. Again, let the record reflect that no one is standing.

_ There’s no appeal and so the decision [inaudible] is final. I am going to give you and the immigration service attorney a copy of the decision. And I do wish all of you good luck for the future. The hearing for you is finished.

B.

Due process requires that, “where a determination made in an administrative proceeding is to play a critical role in the subsequent imposition of a criminal sanction, there must be some meaningful review of the administrative proceeding. This principle means at the very least that where the defects in an administrative proceeding foreclose judicial review of that proceeding, an alternative means of obtaining judicial review must be made available before an administrative order may be used to establish conclusively an element of a criminal offense.” United States v. Mendoza-Lopez, 481 U.S. 828, 837-38, 107 S.Ct. 2148, 2154-55, 95 L.Ed.2d 772 (1987) (citations omitted) (emphasis in original); see also Yakus v. United States, 321 U.S. 414, 444, 64 S.Ct. 660, 677, 88 L.Ed. 834 (1944). Although a deportee may waive his right to judicial review of his deportation order, that waiver must be “considered and intelligent.” Id. Otherwise, the deportee is deprived of judicial review in violation of due process.² The government bears the burden of proving the waiver. See Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977) (“it [is] incumbent upon the State to prove ‘an intentional relinquishment or abandonment of a known right or privilege.’ ”) (citation omitted).³ “Courts should ‘indulge every reasonable presumption against waiver,’ and they should ‘not presume acquiescence in the loss of fundamental rights.’ ” Barker v. Wingo, 407 U.S. 514, 525, 92 S.Ct. 2182, 2189, 33 L.Ed.2d 101 (1972) (citations omitted).

Although we have held the government may conduct group deportation hearings if the proceedings comport with due process, United States v. Nicholas-Armenta, 763 F.2d 1089, 1091 (9th Cir.1985), we have never held that due process is satisfied by a mass silent waiver of the right to appeal a deportation order.

The government argues that requiring a detained alien who wishes to assert his right to appeal to stand for questioning provides sufficient input to ensure the waiver was knowing and intelligent. We disagree. The immigration judge made no effort to determine whether Lopez-Vasquez individually wished to waive his right to appeal, and the mass waiver by silence made it impossible to determine whether he made a voluntary and intelligent decision to do so.⁴ Mass silent waiver creates a risk that individual detainees will feel coerced by the silence of their fellows. The immigration judge’s directive that to preserve the right to appeal a detainee must stand up “so that I can talk to you about that” did nothing to lessen this risk. Indeed, it tended to stigmatize detainees who wished to appeal and to convey a message that appeal was disfavored and contingent upon further discussion with the immigration judge.⁵

The government also notes the immigration judge explained the right to appeal, and Lopez-Vasquez was provided with a form explaining his right to an appeal in Spanish. These facts might support an argument that Lopez-Vasquez knew what his right to an appeal was, but they fail to demonstrate that Lopez-Vasquez’s silent waiver of the right was itself “considered” and “intelligent.” United States v. Mendoza-Lopez, 481 U.S. 828, 840, 107 S.Ct. 2148, 2156, 95 L.Ed.2d 772 (1987).⁶

We conclude mass silent waiver impermis-sibly “presume[s] acquiescence” in the loss of the right to appeal and fails to overcome the “presumption against waiver.” See Barker, 407 U.S. at 525, 92 S.Ct. at 2189.⁷ We reach the same conclusion in United States v. Gonzalez-Mendoza, 985 F.2d 1014-1017 (9th Cir.1993).

III.

In reliance upon the panel opinion in United States v. Proar-Tovar, 945 F.2d 1450 (9th Cir.1991), superseded by 975 F.2d 592 (9th Cir.1992) (en banc), Lopez-Vasquez made no effort to show prejudice from the failure to appeal or to argue the issue of prejudice in the district court or on appeal. After the parties filed their opening briefs in this case, the en banc court superseded the panel opinion and held that “[a] defendant who seeks to exclude evidence of a deportation order in a prosecution under 8 U.S.C. § 1326 must do more than demonstrate deprivation of the right to a direct appeal from that order. The defendant also bears the burden of proving prejudice.” Proar-Tovar, 975 F.2d at 595. We requested supplemental briefs on the impact of the en banc decision on this case.

The government argues Lopez-Vasquez “had no relief available to him from his inevitable deportation” because his prior criminal convictions make him ineligible for suspension of deportation, voluntary departure, or lawful admission for permanent residence.⁸ Lopez-Vasquez argues remand is necessary because he had no reason to present evidence of prejudice to the district court.

Because neither Lopez-Vasquez nor the district court considered the question of prejudice and the record is incomplete, we are unable to determine whether Lopez-Vasquez can provide “some concrete evidence indicating that the violation of [his right to appeal] actually had the potential for affecting the outcome of [the] deportation proceedings.” U.S. v. Cerda-Pena, 799 F.2d 1374, 1379 (9th Cir.1986). Accordingly, we remand to the district court for consideration of this issue.⁹

Remanded.

Footnotes

1

. The total exchange between Lopez-Vasquez and the immigration judge follows:

Q: Mr. Lopez, do you want to get the free lawyer?

A: No.

Q: Mr. Lopez, did you enter without inspection January 9 of this year?

[no answer indicated]

Q: Sir, you are charged with entering the country without inspection, do you understand this charge?

[no answer indicated]

Q: Is this charge true in your case?

[no answer indicated]

Q: The second charge of deportability is this drug charge. I want to ask you on October 2, 1989, were you convicted in Superior Court in Los Angeles for possession of heroin?

A: Yes.

Q: Well, they have a technical error on this drug charge of deportability. This is going to cause great trouble for me until the Immigration Service can become comfortable with it. But I'm going to sustain only the entry inspection charge in your case. Tell, sir, have you anything for your defense?

[no answer indicated]

Q: What was your first year here?

A: 71

Q: What family have you here?

A: All of them.

Q: Well, who?

A: My mother, my wife and my kids.

Q: Your mother and your wife, are they legal? Immigrants?

[no answer indicated]

Q: Why aren’t you an immigrant through them?

A: I never arrange to file the papers [inaudible]

Q: Well, did you apply for immigrant status in 1971?

[no answer indicated]

Q: What happened? You just filed the papers and forgot about them?

[no answer indicated]

Thank you sir, sit down.

2

. As the Supreme Court explained in Mendoza-Lopez,

We ... accept the legal conclusions of the court below that the deportation hearing violated due process. If the violation of respondents’ rights that took place in this case amounted to a complete deprivation of judicial review of the determination, that determination may not be used to enhance the penalty for an unlawful entry under § 1326. We think that it did. The Immigration Judge permitted waivers of the right to appeal that were not the result of considered judgments by respondents .... Because the waivers of their rights to appeal were not considered or intelligent, respondents were deprived of judicial review of their deportation proceedings.

Id., 481 U.S. at 840, 107 S.Ct. at 2156.

3

. Other circuits that may appear to have placed the burden of proof on the defendant did not consider the allocation of burden of proof in Brewer. See United States v. Fares, 978 F.2d 52, 56-57 (2d Cir.1992); United States v. Encarnacion-Galvez, 964 F.2d 402, 406 (5th Cir.1992); United States v. Holland, 876 F.2d 1533, 1536 (11th Cir.1989).

4

. The government misinterprets the record in at least one respect by stating that "appellant, along with the group, state[d] "yeah” in response to the immigration judge's inquiry as to whether they understood the appellate process.” In fact, the group responded to the question whether each understood the decision in his case, and the record does not reveal whether Lopez-Vasquez joined in the response.

5

. In its petition for rehearing, the government asserts some aliens stand when asked to do so if they wish to assert their right to appeal. The government's observation does not undermine our conclusion that this procedure makes it impossible to determine whether aliens who do not stand have made a voluntary and intelligent decision to waive their right to appeal.

6

. The government also argues Lopez-Vasquez ought to have known of his right to appeal because he is of average intelligence and competence, he never demonstrated confusion during the hearing, and his criminal record and prior deportations demonstrate his familiarity with deportation proceedings and the right to appeal. These arguments miss the point. Lopez-Vasquez apparently knew what an appeal was, and was aware he had some right to an appeal. However, the immigration judge's comments and the requirement that detainees stand if they wished to preserve their rights may have conveyed the message that detainees should accept their deportation and not appeal.

7

. The cases cited by the government from other circuits do not support its argument that a mass waiver by silence of the right to appeal comports with due process. In United States v. Holland, 876 F.2d 1533 (11th Cir.1989), the court ultimately did not decide whether waiver of the right to appeal was knowing and intelligent because it found no prejudice even if the waiver were invalid. In United States v. Zaleta—Sosa, 854 F.2d 48 (5th Cir.1988), the court upheld a waiver given during a personal one-on-one exchange between the detainee and the immigration judge. See also United States v. Chavez-Huerto, 972 F.2d 1087 (9th Cir.1992) (upholding waiver where defendant expressly waived appeal in one-on-one conversation with immigration judge); United States v. Villa-Fabela, 882 F.2d 434 (9th Cir.1989) (same).

In its petition for rehearing, the government contends our decision conflicts with United States v. Barraza-Leon, 575 F.2d 218 (9th Cir.1978), and United States v. Calles-Pineda, 627 F.2d 976 (9th Cir.1980). In Barraza-Leon, the court observed,

In response to the judge's questions, only a single, translated reply appears in the record, indicating the substance ... of each respondent's answer.... [A]ll of the respondent's waived their right to counsel, all admitted de-portability, and none wished to appeal. As a result, the answers to each question were translated as one answer for all of the respondents .... While it would be more helpful to have a record of the precise, individual statements of each respondent in multiple deportation hearings, due process does not require it.

Id. at 221. This passage cannot assist the government because it indicates the immigration judge asked each alien whether he wished to appeal and each responded that he did not wish to appeal.

In Calles-Pineda, 'appellant alleged his due process rights were violated because he was "never personally addressed by the immigration judge.” The court observed Barraza-Leon upheld “substantial identical” procedures, but never passed on the substance of appellant's claim, although the court noted Calles-Pineda had not alleged he was "prejudiced in fact by the procedures employed.” 627 F.2d at 977. Calles-Pineda did not hold mass silent waiver of the right to appeal a deportation order comports with due process because that issue was not raised. The citation to Barraza-Leon on the claim that appellant had a general right to be personally addressed by the immigration judge cannot transform the failure to rule on that issue into a holding on the issue presented in the instant case because the judge in Barraza-Leon asked each deportee whether he wished to appeal and each responded that he did not wish to appeal.

8

. The government claims Lopez-Vasquez has been convicted six times since 1978 for theft of property, driving under the influence, burglary, and possession of a controlled substance. An alien is statutorily ineligible for suspension of deportation if he cannot show good moral character, and no person can make such a showing if he has been imprisoned for more than 180 days over the preceding seven years. Voluntary departure requires a showing of good moral character over the previous five years. Lawful admission for permanent residence is not available to aliens who have a committed crime of moral turpitude, which includes theft. Villa-Fabela, 882 F.2d at 440-41.

9

. We note that if Lopez-Vasquez can make a prima facie showing of prejudice, "the burden then shifts to the government to show that the violation could not have changed the outcome of the deportation proceedings." Id.